B-141934, FEB. 25, 1960

B-141934: Feb 25, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED FEBRUARY 4. OF WHICH 17 ARE LISTED BELOW IN ESTIMATED QUANTITIES.'. WAS THE HIGH BIDDER ON THIS ITEM. AWARD WAS MADE TO THE COMPANY ON MAY 19. THAT SINCE IT WAS IMPOSSIBLE TO INSPECT EACH ITEM. AS LONG SLEEVE SHIRTS HAVE MORE VALUE THAN SLEEVELESS SHIRTS. THAT LONG SLEEVE UNDERSHIRTS AS DESCRIBED IN THE INVITATION ARE NOT A STANDARD STOCK ITEM NOR WERE THEY EVER PURCHASED IN JAPAN. " WHICH IN JAPANESE USAGE IS A SLEEVELESS UNDERSHIRT USED BY ATHLETES. THE CONTRACTING OFFICER FURTHER REPORTED THAT AT THE TIME THE LOT WAS REPORTED FOR SALE IT CONTAINED SLEEVELESS UNDERSHIRTS AND NOT LONG SLEEVE UNDERSHIRTS. THAT THE LOT CONTAINED SLEEVELESS UNDERSHIRTS ALTHOUGH THIS ITEM WAS MISDESCRIBED IN THE INVITATION.

B-141934, FEB. 25, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 4, 1960, WITH ENCLOSURES, FROM DEPUTY THE QUARTERMASTER GENERAL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN IN CONNECTION WITH THE CLAIM OF TAGA TOSHIO AND COMPANY, LTD., FOR AN ADJUSTMENT OF THE PRICE OF MISCELLANEOUS CLOTHING PURCHASED FROM UNITED STATES ARMY PROPERTY DISPOSAL SALES AGENCY, YOKOHAMA, JAPAN, UNDER CONTRACT NO. DA (A) 92-557-FEC-29193, DATED MAY 19, 1959.

THE INVITATION DESCRIBED ITEM 6, THE ITEM INVOLVED, AS "CONSISTS OF APPROXIMATELY 164 UNSEGREGATED LINE ITEMS, OF WHICH 17 ARE LISTED BELOW IN ESTIMATED QUANTITIES.' AMONG THE LIST OF 17 ITEMS APPEARS THE ITEM "2,738 EA--- UNDERSHIRT, 50 PERCENT COTTON, 50 PERCENT WOOL, LONG SLEEVES, VARIOUS SIZES.' TAGA TOSHIO AND COMPANY, LTD., WAS THE HIGH BIDDER ON THIS ITEM, AND AWARD WAS MADE TO THE COMPANY ON MAY 19, 1959, AT ITS BID PRICE OF $2,302,600.

THE CONTRACTOR STATED IN HIS LETTERS OF MAY 27 AND AUGUST 21, 1959, THAT HE MADE AN INSPECTION OF ITEM 6 PRIOR TO SUBMISSION OF HIS BID AND FOUND 3 LONG SLEEVE UNDERSHIRTS IN THE LOT, AND THAT SINCE IT WAS IMPOSSIBLE TO INSPECT EACH ITEM, HE TOOK IT FOR GRANTED THAT THE LOT CONTAINED 2,738 LONG SLEEVE UNDERSHIRTS AS ADVERTISED IN THE INVITATION. ALSO, HE STATED THAT AFTER AWARD, HE MADE ANOTHER INSPECTION AND DISCOVERED THAT THE LONG SLEEVE SHIRTS HAD BEEN REPLACED WITH GREEN SLEEVELESS SHIRTS. AS LONG SLEEVE SHIRTS HAVE MORE VALUE THAN SLEEVELESS SHIRTS, THE CONTRACTOR REQUESTED AN ADJUSTMENT IN THE CONTRACT PRICE.

THE CONTRACTING OFFICER STATED THAT THE GOVERNMENT ERRED IN THE INVITATION BY INDICATING LONG SLEEVE UNDERSHIRTS RATHER THAN SLEEVELESS UNDERSHIRTS; THAT LONG SLEEVE UNDERSHIRTS AS DESCRIBED IN THE INVITATION ARE NOT A STANDARD STOCK ITEM NOR WERE THEY EVER PURCHASED IN JAPAN. FURTHER, THE CONTRACTING OFFICER STATED THAT A TRANSLATION OF THE CONTRACTOR'S PENCILLED JAPANESE CHARACTERS ALONGSIDE ITEM 6 OF HIS BID INCLUDES THE TERM "RUNNING SHIRTS," WHICH IN JAPANESE USAGE IS A SLEEVELESS UNDERSHIRT USED BY ATHLETES. THE CONTRACTING OFFICER FURTHER REPORTED THAT AT THE TIME THE LOT WAS REPORTED FOR SALE IT CONTAINED SLEEVELESS UNDERSHIRTS AND NOT LONG SLEEVE UNDERSHIRTS; THAT THE INTEGRITY OF THE LOT HAS BEEN MAINTAINED AND THAT THE CONTRACTOR KNEW, BASED ON HIS INSPECTION, THAT THE LOT CONTAINED SLEEVELESS UNDERSHIRTS ALTHOUGH THIS ITEM WAS MISDESCRIBED IN THE INVITATION.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE CONTRACT, PROVIDES THAT THE DESCRIPTION IS BASED UPON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, OR ITS FITNESS FOR ANY USE OR PURPOSE AND THAT NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.

THE UNDERSHIRTS IN QUESTION WERE SOLD FOR WHAT THE GOVERNMENT BELIEVED THEM TO BE. WHILE THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY MAY HAVE BEEN INACCURATE IT WAS PREPARED IN GOOD FAITH FROM AVAILABLE DATA. IN THE CIRCUMSTANCES, NO LEGAL RESPONSIBILITY WOULD ATTACH TO THE GOVERNMENT AS A RESULT OF THE SALE IN QUESTION. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR UNDER THE CONTRACT INVOLVED.